Monday, June 11, 2012

Pennsylvania Adopts E-Discovery Rules

On June 6, 2012, the Pennsylvania Supreme Court issued an Order amending the Pennsylvania Rules of Civil Procedure to include e-discovery provisions. They also announced the changes via Twitter. Yup, they have their own Twitter account - one of the reasons my state's high court is cooler than yours.

You can view the Amendments here. All told, they're pretty modest. Electronically Stored Information is expressly included in 4009.1 (Production of Documents and Things). The rules also address the format of the responses:
A party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.
Sounds a lot like the federal rules, huh? Not so fast! The explanatory comment expressly states that "there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information."

Instead, Pennsylvania utilizes its own proportionality standard. How does that work with ESI? I'm glad you asked . . . the court is required to consider:
(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; 
(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; 
(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; 
(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and 
(v) any other factors relevant under the circumstances.
It will be interesting to see if Pennsylvania's proportionality standard can control costs any better than the federal rules.

HT: Jon Stepanian, my McQuaide Blasko colleague and blogger at Defense of Medicine.